Special counsel Robert Mueller’s report explicitly says Congress should be the body that determines whether President Donald Trump obstructed justice.
That conclusion differs sharply from what Attorney General Bill Barr said at a Thursday morning press conference. Barr told reporters that Mueller didn’t indicate whether he would leave the question of Trump’s possible obstruction of justice up to Congress.
Barr was wrong; Mueller clearly laid out what role he sees Congress taking. Here’s what Mueller’s report actually says:
“The conclusion that Congress may apply obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”
Mueller wrote that no person — not even the president of the United States — is above the law, and that the US Constitution doesn’t “categorically and permanently immunize a President for obstructing justice.” Congress’ next steps will be critical because Mueller’s report explicitly states, “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Mueller’s work may be over, but Congress’s isn’t.
Mueller examined Congress’ role through the lens of separation of powers in the US Constitution and past court cases, and concluded that Congress has authority to act in cases in which a president may have committed obstruction of justice.
“With respect to whether the President can be found to have obstructed justice by exercising his powers under Article II of the Constitution, we concluded that Congress has authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice,” Mueller’s report reads.
Here’s what Mueller’s report says about what Congress can do:
“Under [the Office of Legal Counsel’s] analysis, Congress can permissibly criminalize certain obstructive conduct by the President, such as suborning perjury, intimidating witnesses, or fabricating evidence, because those prohibitions raise no separation-of-powers questions.”
“The separation-of-powers doctrine authorizes Congress to protect official proceedings, including those courts and grand juries, from corrupt, obstructive acts regardless of their source. We also concluded that any inroad on presidential authority that would occur from prohibiting corrupt acts does not undermine the President’s ability to fulfill his constitutional mission.”
“Finally, we concluded that in the rare case in which a criminal investigation of the President’s conduct is justified, inquiries to determine whether the President acted for a corrupt motive should not impermissibly chill his performance of his constitutionally assigned duties. The conclusion that Congress may apply obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”
Importantly, Mueller also says Congress has some power when it comes to weighing in if the president decides to grant any presidential pardons, even though Trump has broad authority to pardon whoever he wants:
“For example, although the President’s power to grant pardons is exclusive and not subject to congressional regulation, Congress has the authority to prohibit the corrupt use of ‘anything of value’ to influence the testimony of another person in a judicial, congressional, or agency proceeding, which would include the offer or promise of a pardon to induce a person to testify falsely or not to testify at all. The offer of a pardon would precede the act of pardoning and thus be within Congress’s power to regulate even if the pardon itself is not.”
Now that Mueller’s report is out, the ball is in House Democrats’ court.
Throughout the past few months, House Speaker Nancy Pelosi has been very careful to steer the subject of the Mueller report away from impeachment proceedings. In general, Democrats have so far been methodical and incremental in their approach to Mueller’s investigation.
Today was no different. Rather than calls for impeachment, there were requests for more information. Pelosi and her top committee chairs called for Mueller to testify on Capitol Hill no later than May 23. Rep. Jerry Nadler (D-NY) released a statement saying he would subpoena the Trump administration for the full, unredacted Mueller report.
“The special counsel determined that he would not make a traditional charging decision in part because of the Department of Justice policy that a sitting president could not be indicted,” Nadler said. “The special counsel made clear that he did not exonerate the president. The responsibility now falls to Congress to hold the president accountable for his actions.”
When a reporter asked Nadler if Democrats would pursue impeachment, he left the door open, but wouldn’t say much more.
“That’s one possibility, there are others,” Nadler said. “It’s too early to reach those conclusions, it’s one reason we wanted the Mueller report … and we’ll want other evidence too.”
Pelosi, Nadler, and Senate Minority Leader Chuck Schumer have reserved most of their criticism for Attorney General Barr, criticizing him for misrepresenting part of Mueller’s findings and for being reticent to work with Congress on its oversight investigations.
But Democrats are also keeping their next steps close to the vest. They will have many more questions for Barr when he appears before the Judiciary Committee on May 2, and for Mueller, should he agree to testify.
Overall, it seems Democrats plan to keep chipping away at their own investigation while they decide what to do next.